Photo Source: ANI
BJP's Rajya Sabha candidate from HP got elected although he too failed to secure sufficient quota-HC Advocate
As per Election Rules, quota required for election was 35 however BJP & Cong nominees both got 34-34 each -- Advocate Hemant Kumar
Babushahi Bureau
Chandigarh, February 28, 2024: Amid the ongoing political crisis in Himachal Pradesh, Hemant Kumar, Advocate in Punjab and Haryana High Court claimed that BJP's Rajya Sabha candidate from HP got elected although he too failed to secure sufficient quota.
"Despite BJP being the (principal) opposition party in Himachal Pradesh Legislative Assembly with merely 25 seats in the House with total strength of 68 vis-a-vis the ruling Congress whose tally is 40 while three other being Independent MLAs, the candidate fielded by the saffron party, Harsh Mahajan, in the Biennial Election for one seat of Rajya Sabha (Council of States) from the State got elected with 34 votes courtesy cross-voting by half a dozen Cong party legislators along with votes of all three Independents. The Congress candidate, Dr. Abhishek Manu Singhvi, who too got 34 votes i.e. equal to BJP's Mahajan but the former lost the battle in the (draw of) lot which is the mechanism being employed by the Returning Officer (R.O.) in case of tie of votes," said Hemant Kumar.
He added that nevertheless luck favoured BJP's nominee Mahajan in tie-breaker i.e. draw of lot but the interesting yet significant legal point is that even he has not been able to attain quota sufficient for election which in the case at hand was 35.
While quoting Rule 75 of Conduct of Election Rules, 1961 which pertains to counting of votes where only one seat is to be filled, Hemant added that in case of 68 member Himachal Pradesh Legislative Assembly, when all 68 MLAs voted in Rajya Sabha Biennial Election for one seat and all such votes were valid, then as per ibid Rule, the quota sufficient to get elected was 35 i.e one more than 34-34 votes as got by both BJP and Cong nominees.
When asked if non-attainment of quota sufficient to get elected i.e. 35 would have any impact over the election of BJP's Harsh Mahajan, who with 34 votes i.e. equal with that of Cong's Singhvi, however the former emerging victorious in the draw of lot, Hemant says it can't be convincingly asserted at this moment that in case where only one Rajya Seat is to be filled and the two contesting candidates get equal votes although one less than quota sufficient for getting elected, then the triumph of one nominee via draw of lot would be totally legally valid. Thus, door of Judicial Review remains open as what has happened in indeed unprecedented.
However, Hemant at the same time also quoted Rule # 81(3) of Conduct of Election Rules, 1961 which stipulates that when at the end of any count only one vacancy remains unfilled and there are only two continuing candidates and each of them has the same value of votes and no surplus remains capable of transfer, the returning officer shall decide by lot which of them shall be excluded and after excluding him in the manner aforesaid declare the other candidate to be elected.